Handbook on International Standards and Media Law in the Arab World

7/27/2019 Handbook on International Standards and Media Law in the Arab World

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Acknowledgements

This Handbook was drafted by Toby Mendel, Executive Director, Centrefor Law and Democracy. Comments were provided by Sarah

Bouchetob, Middle EastArab World Projects & Campaigns Officer,International Federation of Journalists. Further research was providedby by CLD interns and bro bono students Lauren Leahy, Patrick O'Neill,Katie Sammon and Jason Smythe.Publisher: Beth Costa, the International Federation of Journalists

CLD, Halifax and IFJ, Brussels - ISBN 978-0-9878751-6-7

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1. Give credit to the Centre for Law and Democracy and theInternational Federation of Journalists;

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licence identical to this one.

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Centre for Law and Democracy(CLD)

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Tel: +1 902 431-3688Email: [email protected]: @law_democracy

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Table of Contents

Handbook on International Standards and Media Law in theArab World............................................................................iAcknowledgements..........................................................................................ii

Table of Contents............................................................................................ iiiIntroduction......................................................................................................2Part A: General Standards................................................................................3Part B: Media Regulation..................................................................................9

1.Independence of Regulatory Bodies........................................................10

2.Diversity.................................................................................................. 183.Regulation of Journalists..........................................................................264.Regulation of the Print Media..................................................................335.Regulation of the Broadcast Media..........................................................416.Public Service Broadcasting.....................................................................48

Part C: Other Rules......................................................................................... 557.Right to Information.................................................................................558.Civil Restrictions...................................................................................... 589.Criminal Restrictions................................................................................62

Conclusion......................................................................................................71

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Preface

The new Middle East after the so-called Arab Spring is more

complicated than it was. As the whole region went into labour, it wouldtake an all-powerful crystal ball to predict how the offspring will look.But one thing is certain. The Arab voice that made itself heard inmore than a dozen countries since Tunisia erupted into revolution atthe beginning of 2011 will not be silenced.

Journalists and their organisations in the region, most of them memberunions of the International Federation of Journalists, have and continueto play a significant role at the heart of these extraordinary events. Asthe dam finally burst, the IFJ assembled the leaders of its member

unions to discuss putting in place strategies on how to advance keymedia law reforms needed to promote a new vision for journalism inthe Arab world, embedded in a host of democratic values.

We were encouraged by the real possibility of serious positive change,for the first time ever, in igniting a dynamic that would transformmedia freedom in the Arab world. There was no need to re-invent thewheel with such easy access to the plethora of international laws thatprovides a robust protection for freedom of expression and the mediacontinuously enacted by international human rights courts and other

official bodies.

For a start it is quite clear that all of the countries in the Arab world arein serious breach of all or most of these standards. The overwhelminginterference by government in regulatory decisions, the lack ofrecognition of the most basic principles of content and sourcediversity, pluralism, the manipulation of licensing processes,manipulative rules on accreditation, the paucity of journalists rights,restriction on contents, the weak traditions of protection ofconfidentiality, of the right of citizens to know and the primacy of

secrecy, and the continuous abuse of the concept of national securityand public order to cower journalists are all formidable challenges.

In offering a unique overview of these rules and laws and spelling outsolutions to the challenges facing Arab journalists, this Handbook willprove a solid tool for these journalists and their unions to strengthentheir campaigns for key media reforms and promote practical actionsto confront the continuing threats from poverty, corruption and undue


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political influence.

Jim BoumelhaPresidentInternational Federation of Journalists

Introduction

All serious commentators on democracy recognise the key role playedby respect for freedom of expression in general, and freedom of themedia in particular, in realising that grand social project. Democracy is,more than anything else, the ability of citizens to participate in thepolitical process by voicing their views and concerns, and by formingopinions based on a solid foundation of information.

Until recently, respect for both democracy and freedom of expressionhas been in short supply in the Arab world. There has been a degree oftolerance for what some have termed Arab exceptionalism, or a lackof respect for these basic human values, for various political andeconomic reasons. This has now started to change with the advent ofthe so-called Arab Spring, which has been founded on demands by thecitizens of Arab countries for greater freedom.

Achievements so far remain somewhat modest. Freedom Housesannual Freedom of the Press rating gave five countries in the region apartly free rating for 2011, up from just two in 2010. 1 While this is still

poor, the direction is positive. More importantly, there is now realpotential for very serious change in the region. Indeed, the potentialnow exists for the first time to build real democracies in a regionhitherto characterised by dictatorships and monarchies.

For democratic change in the region to be effective, it must be built onsolid foundations. The need for media law reform is an absolutelyessential part of those wider foundations. While official tolerance ofmedia freedom is possible even in the absence of structural legalreforms, the experience of countries around the world demonstratesthat, without structural change, such tolerance will inevitably remain

short-term and unstable.

This Handbook aims to provide reformers in the region withinformation about key international standards regarding different areasof media law, along with a description of the main trends within theregion in relation to that issue. It covers all of the main media law

1 These ratings are reflected in the reports of the following year (i.e. the 2011 scores are given in the 2012

report). The ratings for all years are available at: http://www.freedomhouse.org/report-types/freedom-press.

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issues, including media diversity, the need for bodies which regulatethe media to be independent of political and commercial interference,regulatory standards in different media sectors including journalists,the print and broadcast media and public broadcasting the right toinformation, and criminal and civil restrictions on what may be

published or broadcast.

The standards set out in this Handbook, as well as the changes it notesare needed for countries in the Arab world, are just a starting place.Reformers in each country will need to consider how to move fromtheir very different existing legal and institutional situations towards amore democratic and free dispensation, taking into account theirpolitical, social and cultural realities. It is hoped, however, that thisHandbook will prove useful as a starting place, for without anunderstanding of international standards regarding media law, and theways in which existing rules and practices fail to respect those

standards, it will be difficult to move forward.

Part A: General Standards

The right to freedom of expression is guaranteed in Article 19 of theUniversal Declaration on Human Rights (UDHR),2 as follows:

Everyone has the right to freedom of opinion and expression; this rightincludes the right to hold opinions without interference and to seek,receive and impart information and ideas through any media andregardless of frontiers.

The UDHR, as a UN General Assembly resolution, is not directly bindingon States. However, parts of it, including Article 19, are widelyregarded as having acquired legal force as customary international lawsince its adoption in 1948.3

Freedom of expression is also guaranteed in Article 19 of theInternational Covenant on Civil and Political Rights (ICCPR),4 a treatyratified by 167 States,5 as follows:

(1) Everyone shall have the right to freedom of opinion.(2) Everyone shall have the right to freedom of expression; this right

shall include freedom to seek, receive and impart information andideas of all kinds, regardless of frontiers, either orally, in writing or in

2 United Nations General Assembly Resolution 217A (III), 10 December 1948.3 See, for example, Barcelona Traction, Light and Power Company Limited Case (Belgium v. Spain)

(Second Phase), ICJ Rep. 1970 3 (International Court of Justice) and Namibia Opinion, ICJ Rep. 1971 16,

Separate Opinion, Judge Ammoun (International Court of Justice).4 UN General Assembly Resolution 2200A(XXI), adopted 16 December 1966, in force 23 March 1976.5 As of May 2013. These include Algeria, Bahrain, Djibouti, Egypt, Iraq, Jordan, Kuwait, Lebanon, Libya,

Morocco, Somalia, Sudan, Syria, Tunisia and Yemen.

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print, in the form of art or through any other media of his choice.

Freedom of expression is protected in all three regional human rightstreaties, specifically at Article 13 of the American Convention onHuman Rights (ACHR),6 at Article 10 of the European Convention on

Human Rights (ECHR)

7

and at Article 9 of the African Charter onHuman and Peoples Rights (ACHPR).8 The latter is directly binding onmost of the States of North Africa, while the other treaties, and theway in which freedom of expression has been interpreted in thesesystems, provides an important source of understanding as to its scopeand nature under international guarantees.

The Importance of Freedom of ExpressionIt is difficult to overstate the importance of freedom of expression.Where this fundamental right is denied, and the free flow of informationand ideas is constrained, other human rights, as well as democracy

itself, are at risk. Democratic participation depends on the free flow ofinformation and ideas, since the substantive engagement of citizens indecision-making processes can only be achieved if people are bothinformed and have access to the possibility of voicing their views. Othersocial values including good governance, public accountability,development, individual fulfilment and combating corruption alsodepend on respect for freedom of expression.

International bodies and courts have repeatedly emphasised thefundamental importance of the right to freedom of expression. At itsvery first session, in 1946, the United Nations General Assembly adopted

Resolution 59(I),9

which refers to freedom of information in its widestsense:

Freedom of information is a fundamental human right and ... thetouchstone of all the freedoms to which the United Nations isconsecrated.

As this resolution notes, freedom of expression is fundamentallyimportant both as an individual right and as indispensable to theexercise of all other rights. The idea of freedom of expression as anunderpinning of democracy and other human rights has also beenstressed by international human rights bodies. The UN Human RightsCommittee, the body established to monitor implementation of theICCPR, has held:

The right to freedom of expression is of paramount importance in any

6 Adopted at San Jos, Costa Rica, 22 November 1969, in force 18 July 1978.7 Adopted 4 November 1950, in force 3 September 1953.8 Adopted at Nairobi, Kenya, 26 June 1981, in force 21 October 1986.9 Adopted 14 December 1946.

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democratic society.10

Similarly, the Inter-American Court of Human Rights has stated:Freedom of expression is a cornerstone upon which the veryexistence of a democratic society rests.11 And the European Court ofHuman Rights has noted: Freedom of expression constitutes one of theessential foundations of [a democratic] society, one of the basicconditions for its progress and for the development of every man.12

International guarantees of freedom of expression provide wideprotection for all forms of expression, covering not only statementsthat are generally deemed to be in the public interest, but also thosethat are considered, even by most of the populace, as offensive orunpalatable. Indeed, the notion of protecting unpopular speech lies atthe very heart of the importance of guarantees of freedom ofexpression. As the European Court has made clear:

[F]reedom of expression is applicable not only to information orideas that are favourably received but also to those which offend,shock or disturb the State or any other sector of the population. Suchare the demands of pluralism, tolerance and broadmindednesswithout which there is no democratic society.13

The Importance of Media FreedomThe right to freedom of expression is of particular importance inrelation to the media, given its role in making the free flow ofinformation and ideas a reality. In most countries, the media remainthe main vehicle for promoting and sustaining public discussion. The

Inter-American Court of Human Rights has stated: It is the massmedia that make the exercise of freedom of expression a reality.14TheEuropean Court of Human Rights has referred to the pre-eminent roleof the press in a State governed by the rule of law. 15 The media as awhole merit special protection in part because of their role in makingpublic information and ideas on matters of public interest. Not onlydoes [the press] have the task of imparting such information andideas: the public also has a right to receive them. Were it otherwise,the press would be unable to play its vital role of public watchdog.16

Similarly, in its Declaration of Principles on Freedom of Expression in

10Tae-Hoon Park v. Republic of Korea, 20 October 1998, Communication No. 628/1995, para. 10.3.11Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, AdvisoryOpinion OC-5/85 of 13 November 1985, Series A, No. 5, para. 70.12Handyside v. the United Kingdom, 7 December 1976, Application no. 5493/72, para. 49.13Ibid.14Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism , note Error:

Reference source not found, para. 34.15Thorgeir Thorgeirson v. Iceland, 25 June 1992, Application no. 13778/88, para. 63.16Ibid.

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Africa (African Declaration), adopted in 2003, the African Commissionon Human and Peoples Rights stressed the key role of the media andother means of communication in ensuring full respect for freedom ofexpression, in promoting the free flow of information and ideas, inassisting people to make informed decisions and in facilitating and

strengthening democracy.17

The media play a very important role in underpinning democracy,including during elections. The UN Human Rights Committee hasstressed the importance of free media to the political process:

[T]he free communication of information and ideas about public andpolitical issues between citizens, candidates and electedrepresentatives is essential. This implies a free press and other mediaable to comment on public issues without censorship or restraint andto inform public opinion.18

In a similar vein, the European Court has emphasised:

Freedom of the press affords the public one of the best means ofdiscovering and forming an opinion of the ideas and attitudes of theirpolitical leaders. In particular, it gives politicians the opportunity toreflect and comment on the preoccupations of public opinion; it thusenables everyone to participate in the free political debate which is atthe very core of the concept of a democratic society.19

The Right to Seek and ReceiveUnder international law, freedom of expression protects not only theright of the speaker (to impart information and ideas) but also the

right of the listener (to seek and receive information and ideas). Theimplications of the right to seek and receive information and ideas, akey aspect of the right to freedom of expression, have been elaboratedupon clearly and forcefully by the Inter-American Court of HumanRights. The Court recognised early on the important implications of thedual nature of the right to freedom of expression:

[W]hen an individuals freedom of expression is unlawfully restricted,it is not only the right of that individual that is being violated, but alsothe right of all others to receive information and ideas. The rightprotected by Article 13 consequently has a special scope andcharacter, which are evidenced by the dual aspect of freedom of

expression. It requires, on the one hand, that no one be arbitrarilylimited or impeded in expressing his own thoughts. In that sense, it isa right that belongs to each individual. Its second aspect, on the otherhand, implies a collective right to receive any information whatsoeverand to have access to the thoughts expressed by others. In its social

17 Adopted by the African Commission on Human and Peoples Rights at its 32nd Session, 17-23 October

2002.18 UN Human Rights Committee General Comment 25, CCPR/C/21/Rev.1/Add.7, 12 July 1996.19Castells v. Spain, 24 April 1992, Application no. 11798/85, para. 43.

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dimension, freedom of expression is a means for the interchange ofideas and information among human beings and for masscommunication. 20

The second aspect of the right rules out arbitrary interferences by theState that prevent individuals from receiving information that others

wish to impart to them.21 However, the rights of the listener also placea positive obligation on the State to take measures to promote anenvironment in which a diversity of information and ideas are availableto the public. International law recognises generally that States musttake positive measures to ensure rights. Article 2 of the ICCPR, forexample, places an obligation on States to adopt such legislative orother measures as may be necessary to give effect to the rightsrecognised by the Covenant.22 The specific need for positive measuresto ensure respect for freedom of expression has been widelyrecognised.23

Restrictions on Freedom of ExpressionInternational law recognises that freedom of expression is notabsolute. However, international human rights law places strictconditions on any restrictions on the right. These must comply with theprovisions of Article 19(3) of the ICCPR, which states:

(3) The exercise of the rights provided for in paragraph 2 of thisarticle carries with it special duties and responsibilities. It maytherefore be subject to certain restrictions, but these shall only besuch as are provided by law and are necessary:

(a) For respect of the rights and reputations of others;(b) For the protection of national security or of public order (ordre

public), or of public health or morals.

This imposes a strict three-part test for restrictions. In its most recentGeneral Comment on Article 19 of the ICCPR, adopted in September2009, the UN Human Rights Committee stated:

Paragraph 3 lays down specific conditions and it is only subject tothese conditions that restrictions may be imposed: the restrictionsmust be provided by law; they may only be imposed for one of thegrounds set out in subparagraphs (a) and (b) of paragraph 3; and theymust conform to the strict tests of necessity and proportionality.[references omitted]24

20Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory

Opinion OC-5/85 of 13 November 1985, Series A, No. 5, para. 30-2.21 See, for example,Leander v. Sweden, 26 March 1987, Application no. 9248/81 (European Court of

Human Rights), para. 74.22 See also Article 2 of the ACHR.23 See, for example, Vgt Verein gegen Tierfabriken v. Switzerland, 28 June 2001, Application no. 24699/94

(European Court of Human Rights), para. 45 andMiranda v. Mexico, 13 April 1999, Report No. 5/99, Case

No. 11.739 (Inter-American Commission on Human Rights).24 General Comment No. 34, 12 September 2011, CCPR/C/GC/34, para. 22. See alsoMukong v. Cameroon,

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First, the restriction must be provided by law or imposed in conformitywith the law. This implies not only that the restriction is based on alegal provision, but also that the law meets certain standards of clarityand accessibility. Where restrictions are vaguely drafted, they may be

interpreted in a way that gives them a wide range of differentmeanings. This gives the authorities the discretion to apply them insituations which bear no relation to the original purpose of the law orto the legitimate aim sought to be protected. For those subject to thelaw, vague provisions fail to give adequate notice of exactly whatconduct is prohibited. As a result, they exert an unacceptable chillingeffect on freedom of expression as individuals steer well clear of thepotential zone of application to avoid censure. As the Human RightsCommittee has stated:

For the purposes of paragraph 3, a norm, to be characterized as alaw, must be formulated with sufficient precision to enable anindividual to regulate his or her conduct accordingly and it must bemade accessible to the public. A law may not confer unfettereddiscretion for the restriction of freedom of expression on thosecharged with its execution. Laws must provide sufficient guidance tothose charged with their execution to enable them to ascertain whatsorts of expression are properly restricted and what sorts are not. 25

Second, the restriction must pursue one of the legitimate aims listed inArticle 19(3). It is quite clear from both the wording of the article andthe views of the UN Human Rights Committee that this list is exclusiveand that restrictions which do not serve one of the legitimate aims

listed are not valid:Restrictions are not allowed on grounds not specified in paragraph 3,even if such grounds would justify restrictions to other rightsprotected in the Covenant. Restrictions must be applied only for thosepurposes for which they were prescribed and must be directly relatedto the specific need on which they are predicated. [referencesomitted]26

It is not sufficient, to satisfy this part of the test, for restrictions onfreedom of expression to have a merely incidental effect on one of thelegitimate aims listed. The measure in question must be primarily

directed at that aim.27

Third, the restriction must be necessary to secure the aim. The

21 July 1994, Communication No.458/1991, para.9.7 (UN Human Rights Committee).25 General Comment No. 34, ibid., para. 25.26Ibid., para. 22. See alsoMukong v. Cameroon, note Error: Reference source not found, para.9.7.27 As the Indian Supreme Court has noted: So long as the possibility [of a restriction] being applied for

purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly

unconstitutional and void. Thappar v. State of Madras, [1950] SCR 594, p. 603.

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necessity element of the test presents a high standard to be overcomeby the State seeking to justify the interference, apparent from thefollowing quotation, cited repeatedly by the European Court:

Freedom of expression, as enshrined in Article 10, is subject to anumber of exceptions which, however, must be narrowly interpretedand the necessity for any restrictions must be convincinglyestablished.28

Courts have identified three aspects of this part of the test. First,restrictions must be rationally connected to the objective they seek topromote, in the sense that they are carefully designed to achieve thatobjective and that they are not arbitrary or unfair. Second, restrictionsmust impair the right as little as possible (breach of this condition issometimes referred to as overbreadth). Third, restrictions must beproportionate to the legitimate aim. The proportionality part of the testinvolves comparing two factors, namely the likely effect of the

restriction on freedom of expression and its impact on the legitimateaim which is sought to be protected.

The UN Human Rights Committee has summarised these conditions asfollows:

Restrictions must not be overbroad. The Committee observed ingeneral comment No. 27 that restrictive measures must conform tothe principle of proportionality; they must be appropriate to achievetheir protective function; they must be the least intrusive instrumentamongst those which might achieve their protective function; theymust be proportionate to the interest to be protectedThe principle of

proportionality has to be respected not only in the law that frames therestrictions but also by the administrative and judicial authorities inapplying the law. The principle of proportionality must also takeaccount of the form of expression at issue as well as the means of itsdissemination. For instance, the value placed by the Covenant uponuninhibited expression is particularly high in the circumstances ofpublic debate in a democratic society concerning figures in the publicand political domain.

When a State party invokes a legitimate ground for restriction offreedom of expression, it must demonstrate in specific andindividualized fashion the precise nature of the threat, and thenecessity and proportionality of the specific action taken, in particular

by establishing a direct and immediate connection between theexpression and the threat. [references omitted]29

Part B: Media Regulation

28 See, for example, Thorgeir Thorgeirson v. Iceland, note Error: Reference source not found, para. 63.29 General Comment No. 34, note Error: Reference source not found, paras. 34 and 35.

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1. Independence of Regulatory Bodies

International and Comparative Standards

The idea that bodies which exercise regulatory powers over the media

need to be independent of the government and protected against bothpolitical and commercial interference is well-rooted in internationalstandards, as well as the comparative practice of democratic States.The rationale for this is evident: if regulators are controlled by thegovernment, they are likely make regulatory decisions which favourthe government of the day, rather than the wider public interest. Thiswill undermine the ability of the media to report critically, especially onpolitical actors, and thereby diminish respect for freedom ofexpression.

It is equally important that regulators are independent of the sectors

they regulate. While this has not so far been a major issue in the Arabworld, in part because of the extent of government control, it is amajor or emerging problem in many democracies, where it is referredto as regulatory capture. The negative implications of this are equallyevident and essentially the same: if industry controls the regulator, itwill operate with a bias towards industry, rather than making decisionsin the wider public interest.

It is worth noting that the principle of independence applies to theexercise of regulatory powers, and not to higher-level policy making,which normally remains the preserve of government. For example, in

most countries, framework decisions about the digital switchover including what system will be used, the general timetable for theswitchover and any general measures of public support for the process are policy decisions which are made by a government body. On theother hand, specific decisions about which companies should receivedigital multiplexes are regulatory decisions. If these are left togovernment, the choices will be influenced by politics, to the detrimentof freedom of expression.

The lack of independence of regulators from government has left itsscars throughout the Arab world. Interference has been rife starting

with decisions about who may establish a media outlet (gatekeeping)and continuing into regulatory decisions to apply sanctions for breachof various rules. Decisions about who may operate a broadcaster,launch a newspaper or even practise as a journalist have in mostcountries in the region traditionally been determined more by politicalallegiance, or at least acquiescence, than on the basis of professionalcriteria. Sanctions for breach of the rules themselves often veryelastic in nature have often been applied on more of a political than

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objective basis.

Numerous international statements by authoritative actors support theneed for independence of bodies with the power to regulate the media.For the most part, these statements have been directed at broadcast

or telecommunications regulators, largely because most democraciesdo not have official bodies that regulate the print media or journalists.A broader statement of the need for independence is the followingquotation from a 2003 Joint Declaration adopted by the then threespecial international mandates on freedom of expression the UnitedNations (UN) Special Rapporteur on Freedom of Expression, theOrganization of American States (OAS) Special Rapporteur on Freedomof Expression and the Organization for Security and Co-operation inEurope (OSCE) Special Representative on Freedom of the Media:

All public authorities which exercise formal regulatory powers over themedia should be protected against interference, particularly of apolitical or economic nature, including by an appointments process formembers which is transparent, allows for public input and is notcontrolled by any particular political party.30

More recently, in its September 2009 General Comment on Article 19of the ICCPR, the UN Human Rights Committee made a similarstatement albeit limited to broadcast regulators:

It is recommended that States parties that have not already done soshould establish an independent and public broadcasting licensingauthority, with the power to examine broadcasting applications and togrant licenses. [references omitted]31

All three regional bodies for the protection of human rights in Africa,the Americas and Europe have also referred to this idea. Thus, theAfrican Declaration states very clearly, at Principle VII(1):

Any public authority that exercises powers in the areas of broadcast ortelecommunications regulation should be independent and adequatelyprotected against interference, particularly of a political or economicnature.

The Inter-American Declaration of Principles on Freedom of Expression

(Inter-American Declaration), adopted by the Inter-AmericanCommission on Human Rights in October 2000,32 does not explicitlystate that broadcast regulators must be independent. But it does refer

30 Adopted 18 December 2003. Available at: http://www.osce.org/fom/66176. The special international

mandates, now four with the addition of the African Commission on Human and Peoples Rights (ACHPR)

Special Rapporteur on Freedom of Expression and Access to Information, have adopted a Joint Declaration

on a freedom of expression theme every year since 1999.31 General Comment No. 34, note Error: Reference source not found, para. 39.32 Adopted at the 108th Regular Session, 19 October 2000.

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to the underlying reason for this, stating, in Principle 13:

[T]he concession of radio and television broadcast frequencies, amongothers, with the intent to put pressure on and punish or reward andprovide privileges to social communicators and communicationsmedia because of the opinions they express threaten freedom of

expression, and must be explicitly prohibited by law.

An entire recommendation of the Council of Europe the key humanrights body for the wider community of European countries, whichcurrently has 47 Member States is devoted to this issue, namelyRecommendation (2000)23 on the independence and functions ofregulatory authorities for the broadcasting sector (COERecommendation).33 The very first substantive clause of thisRecommendation states:

Member States should ensure the establishment and unimpeded

functioning of regulatory authorities for the broadcasting sector bydevising an appropriate legislative framework for this purpose. Therules and procedures governing or affecting the functioning ofregulatory authorities should clearly affirm and protect theirindependence.

This view has been upheld by international and national courts. Thereasons for this were set out elegantly in a decision of the SupremeCourt of Sri Lanka holding that a broadcasting bill which gave agovernment minister substantial power over appointments to thebroadcast regulator was incompatible with the constitutional guaranteeof freedom of expression. The Court noted: [T]he authority lacks the

independence required of a body entrusted with the regulation of theelectronic media which, it is acknowledged on all hands, is the mostpotent means of influencing thought.34

Very few cases involving control of regulatory bodies by private actorshave come before international courts. In an interesting case beforethe UN Human Rights Committee from Canada, the issue was thelegitimacy of a system for accreditation of journalists to Parliament.The system was run by a private association, which had effectivelybeen recognised by Parliament for purpose of accreditation, but whichhad refused to accept the applicant in the case as a full member out of

doubts about the regularity of the newspaper for which he worked. Inholding that this was a breach of the right to freedom of expression,the Committee stated:

33Adopted by the Committee of Ministers of the Council of Europe on 20 December 2000. See also the

Declaration of the Committee of Ministers on the independence and functions of regulatory authorities for

the broadcasting sector, adoptd 26 March 2008.34Athokorale and Ors. v. Attorney-General, 5 May 1997, Supreme Court, S.D. No. 1/97-15/97.

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In the instant case, the State party has allowed a private organizationto control access to the Parliamentary press facilities, withoutintervention. The scheme does not ensure that there will be noarbitrary exclusion from access to the Parliamentary media facilities.In the circumstances, the Committee is of the opinion that the

accreditation system has not been shown to be a necessary andproportionate restriction of rights within the meaning of article 19,paragraph 3, of the Covenant, in order to ensure the effectiveoperation of Parliament and the safety of its members.35

This gives some sense of the extent to which the right to freedom ofexpression imposes stringent requirements of independence andfairness on any body which has the power to restrict freedom ofexpression.

Recognising the principle of independent regulation is one thing, butguaranteeing it in practice is quite another, and experience incountries around the world shows that promoting independence is bothinstitutionally complex and difficult to achieve in practice. The COERecommendation provides some guidance as to how independencemay be guaranteed in practice, with sections on Appointment,Composition and Functioning (of the governing boards of thesebodies), Financial Independence, Powers and Competence, andAccountability.

The way in which members are appointed to the governing boards ofregulatory bodies is central to their independence. The AfricanDeclaration states that the appointments process should be open andtransparent, involve the participation of civil society, and shall not becontrolled by any particular political party.36 The COERecommendation devotes some attention to this matter, calling for:members to be appointed in a democratic and transparent manner;rules of incompatibility to prevent individuals with strong politicalconnections or commercial conflicts of interest from sitting on thesebodies; prohibitions on members receiving instructions or a mandatefrom anyone other than pursuant to law; and protection againstdismissal except for non-respect of the rules of incompatibility withwhich they must comply or incapacity to exercise their functions.37

The COE Recommendation also notes the importance of fundingarrangements to independence. It calls on public authorities not to useany financial decision-making power to interfere with regulatorybodies, and calls for funding arrangements to be specified in law in

35Gauthier v. Canada, Communication No. 633/1995, views adopted 5 May 1999, para. 13.6.36 Principle VII(2).37 Clauses 3-8.

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accordance with a clearly defined plan, with reference to the estimatedcost of the regulatory authorities activities, so as to allow them tocarry out their functions fully and independently.38 TheRecommendation also calls for regulatory bodies to have the power toset their own internal rules.39

Both the COE Recommendation and the African Declaration recognisethat broadcast regulators need to be accountable to the public but thatsuch accountability should be achieved in a manner that does notcompromise independence. The African Declaration, for example,states:

Any public authority that exercises powers in the areas of broadcast ortelecommunications should be formally accountable to the publicthrough a multi-party body.40

The COE Recommendation emphasises this point and notes thatregulators should be supervised only in respect of the lawfulness oftheir activities, and the correctness and transparency of their financialactivities.41

These principles are widely recognised in democracies around theworld. In South Africa, the very name of the broadcast regulator, theIndependent Communications Authority of South Africa (ICASA),reflects the idea of independence, and this is also set out clearly in itsfounding legislation, which states:

(3) The Authority is independent, and subject only to the Constitution

and the law, and must be impartial and must perform its functionswithout fear, favour or prejudice.(4) The Authority must function without any political or commercialinterference.42

The governing Council of ICASA consists of seven councillors appointedby the President on the recommendation of the National Assemblyaccording to the following principles: a) participation by the public inthe nomination process; (b) transparency and openness; and (c) thepublication of a shortlist of candidates for appointment. Onlyindividuals who are committed to freedom of expression and other

positive social values, who have relevant expertise and who,collectively, are representative of South Africa as a whole may beappointed. Individuals with strong political connections, as well asthose with vested interests in telecommunications or broadcasting, are38 Clause 9.39 Clause 12.40 Principle VII(3).41 Clause 26.42 Independent Communications Authority of South Africa Act, No. 13 of 2000, s. 3.

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prohibited from becoming members.43

In Chile, the law44 makes it clear that the National Television Council(CNTC) is an autonomous public authority that is functionallydecentralised, with its own legal capacity and accountable to the

President through the Ministry of the General Secretary of Government(Ministerio Secretaria General de Gobierno). Council members shouldbe individuals possessing relevant personal and professional virtues, inthe opinion of both the President and the Senate. Members sit for an 8-year term of office and are re-elected by halves every four years. ThePresident appoints the 11 members with the agreement of the Senate.

In 1995, a new process was put in place for all public appointments inthe United Kingdom. Although the relevant Secretary of Statecontinues to appoint the non-executive members of Ofcom, thebroadcast and telecommunications regulator, appointments are made

on the basis of recommendations reached through the standard publicappointments procedure. This stipulates that all public appointmentsshould be based on merit and subject to scrutiny by at least oneaccredited independent assessor. All the candidates put forward forministerial selection should meet these criteria.45 Ofcoms boardconsists of five members and a chairman, appointed through theindependent appointments process, together with three executivemembers, selected from the senior staff group and including the ChiefExecutive Officer.

Another system to ensure the independence of the appointments

process is in place for the Jamaican Broadcasting Commission (JBC),established by the Broadcasting and Radio Re-Diffusion Act.46Themembers are appointed by the Governor-General (the titular Head ofState) after consultation with the Prime Minister and the Leader of theOpposition. Any serving politician, and anyone who sought electionwithin the past 7 years (whether or not they were successful), isdisqualified from appointment.

Indonesia is perhaps a good example to be used as a reference bycountries in the Arab world as it went through a rapid and generallysuccessful process of democratisation after its 1998 revolution, which

removed the long-standing authoritarian ruler, Suharto. Broadcast43Ibid., ss. 3 and 6.44 Law No 18,838. Available in Spanish at:

http://www.cntv.cl/prontus_cntv/site/artic/20101221/pags/20101221112826.html.45 See the website of the Office of the Commissioner for Public Appointments, at:

.46 Cap. 47. Available at:

http://www.broadcastingcommission.org/uploads/content_page_files/BroadcastingandRadioRe-

DiffusionAct.pdf.

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regulation had traditionally been vested in the Ministry of Informationbut the ministry was abolished when newly installed PresidentAbdurrahman Wahid announced his first cabinet in October 1999.

The Broadcasting Law, adopted in 2002,47 sets out a number of

principles, objectives, functions and directions for broadcasting as awhole (Articles 2-5), which include several references to the idea ofindependence. Article 7 establishes the Indonesia BroadcastingCommission (KPI) as an independent state body responsible forbroadcast regulation, composed of a national and regional bodies. Thenine members of the national KPI and seven members of the regionalKPIs may be nominated by the public and are elected by theparliament (or provincial parliaments) based on an open fit andproper test, while appointments are formalised by the President andGovernors, respectively. Each member must be loyal to Pancasila48 andthe Constitution, be a citizen of Indonesia, have a university degree or

demonstrate the equivalent intellectual capacity, including knowledgeof broadcasting, not be directly or indirectly involved in mass mediaactivities, be a member of a legislative or judicial body, or be agovernment official. Membership is for three years and may berenewed once. Members may be removed following imprisonmentbased on a court decision or by a Presidential Decree upon therecommendation of the parliament. The members elect the chair andvice-chair from among themselves.

Practice in the RegionThe Arab world has historically been characterised by tight

government control over both the print and broadcast media sectors.Although the notion of independent regulation is slowly starting toemerge in a few countries, no country has put in place a properlyindependent system. Iraq was the first country in the region to move inthis direction, and moves in Tunisia to do so are relatively advanced.

In many countries in the region including Palestine, Jordan and eventhe relatively liberal Lebanon regulation of the print media, whichusually includes something akin to a licensing requirement, is donedirectly by government, usually by the Ministry of Information or itsequivalent. In other countries, such as Egypt, the print media are

regulated by a separate body, in that case the Supreme Press Council(SPC), but for the most part these bodies are firmly under governmentcontrol. The situation in Libya is in flux. The General Press Corporation(GPC), which was used to control the print media under the Qaddafiregime, has been abolished and replaced by the Press Support and

47 Law No. 32/2002.48 Pancasila is a set of five principles considered to be foundational to the Indonesian State, including belief

in one god, the unity of Indonesia, democracy and social justice.

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Encouragement Corporation. It remains to be seen whether and towhat extent this new body will prove to be more independent than itspredecessor.

In many countries in the region, private broadcasting is very limited. In

some cases, it is forbidden altogether, while in others it is limited tothe satellite television sector. Where private broadcasters are allowed,there are different approaches to regulation. In some countries, suchas Palestine, regulation of broadcasting is conducted directly by thegovernment, in that case through the Ministry of Information.

A more common model in the region is to establish a separatebroadcast regulator, such as the Haute Autorit de la CommunicationAudiovisuelle (HACA) (or the High Authority for Audio-visualCommunication) in Morocco, the Audio-Visual Commission (AVC) inJordan and the National Council for Audio Visual Media (NCAVM) in

Lebanon. In most countries, including the three noted above, thesebodies are under firm government or official control. In Morocco, forexample, the King appoints the members of HACA while in Jordan theCommission simply makes recommendations to Cabinet, which takesthe final decision as to the licensing or otherwise of broadcasters.

A version of this approach also applies in Egypt, where most of theprivate satellite television stations (there are no private terrestrialtelevision stations yet) operate out of the Free Zones in Egypt, inparticular the Media Public Free Zone. The Free Zones are locatedwithin the territory of Egypt, but are considered offshore areas for

purposes of financial regulation. These Zones fall under the jurisdictionof the General Authority for Investment (GAFI), a government body,which is subject to political control and direction. In the past,applicants needed a security clearance and to pay very large capitaldeposits, the equivalent of approximately USD 4 million, to obtain abroadcasting licence but both of these requirements have been waivedin the post revolutionary environment. In the past, satellite televisionswhich applied to broadcast news were never approved, although thishas also changed.

Egypt Iraq Jordan Lebano

n

Morocco Palestin

e

Tunisia

Directgovernment licensing

X X X X X X

Governmentcontrolledbodylicenses

(GAFI) X (AVC) (NCAVM

)

(HACA)

X X

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Independentregulator

X (CMC) X X X X (HAICA)

Table 1: Licensing BroadcastersNote: this is just a sample of the countries in the region

Two exceptions to this scenario of otherwise strict government controlare Tunisia and Iraq. In Tunisia historically, authorisation to establish anew broadcaster was subject to ministerial authorisation and thelicences were signed by the Prime Minister. A new law, adopted inNovember 2011, created the Independent High Authority for BroadcastCommunication (Haute Autorit Indpendante de la CommunicationAudiovisuelle or HAICA).49 The independence of HAICA is expresslyguaranteed in the law, and its funding is also protected againstpolitical interference. Members are nominated by a range of differentsocial actors (the President, the courts, the parliament, journalists andmedia owners), thereby ensuring that they are not subject to the

control of any one political actor. Members hold tenure for six years,non-renewable, and may be removed only by a decision of the rest ofthe members. The members of HAICA were not appointed for a longtime, so the body was not able to function in practice, but recently thegovernment has moved forward with appointments.

In Iraq, the Communications and Media Commission (CMC) wasoriginally created by the Coalition Provisional Authority (CPA) throughOrder 65 on 20 March 2004. Order 65 establishes the CMC as anindependent body reporting to the parliament and funded by the feesit receives from licensing broadcasters and telecommunications

service providers. Members of the board are proposed by the PrimeMinister but appointed by parliament, and are subject to strong conflictof interest rules and political prohibitions. Sanctions against licenseesare heard by a Hearings Panel, a five-member body of experts, andappeals against sanction decisions may be lodged with the AppealsBoard, a three-member expert body. There have, however, beenserious problems with the operations of CMC, with persistentgovernment attempts to interfere in its operations, as well as to amendits governing legislation in ways that would reduce its independence.

2. Diversity

International and Comparative StandardsThe principle of independence is primarily about the manner in whichmedia regulation should take place. The principle of diversity, on theother hand, is a key objective of such regulation, particularly in the

49 Dcret-loi No 2011-116 du 2 novembre 2011, relatif la libert de la communication audiovisuelle et

portant cration dune Haute Autorit Indpendante de la Communication Audiovisuelle.

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context of broadcasting. Jurisprudentially, the principle of mediadiversity derives from the multi-dimensional nature of the right which,as noted above, protects not only the right of the speaker (to impartinformation and ideas) but also the right of the listener (to seek andreceive information and ideas).50 This prevents States from interfering

with the right of listeners to seek and receive information from others.However, it also places a positive obligation on the State to takemeasures to promote an environment in which a diversity ofinformation and ideas are available to the public. It is not enough forthe State simply to take a laissez faire approach to media regulation,at least in the broadcasting sector, where externalities and rigiditieslike scarce frequencies and the high cost of entry into the sector havetraditionally, in the absence of countervailing regulation, prevented theemergence of a truly diverse media.

Pluralism has received extremely broad endorsement as a key aspect

of the right to freedom of expression. For example, the UN HumanRights Committee has stated:

As a means to protect the rights of media users, including members ofethnic and linguistic minorities, to receive a wide range of informationand ideas, States parties should take particular care to encourage anindependent and diverse media.51

Similarly, the African Declaration states:

Freedom of expression imposes an obligation on the authorities totake positive measures to promote diversity.52

The Inter-American Court of Human rights has recognised that the rightto seek and receive information and ideas requires the existence of afree and pluralistic media:

It is the mass media that make the exercise of freedom of expressiona reality. This means that the conditions of its use must conform tothe requirements of this freedom, with the result that there must be,inter alia, a plurality of means of communication, the barring of allmonopolies thereof, in whatever form, and guarantees for theprotection of the freedom and independence of journalists.53

Within the European context, the issue of media diversity as an aspectof the right to freedom of expression has attracted considerable

50 See, for example, the Inter-American Courts judgment inBaruch Ivcher Bronstein v. Peru, note Error:

Reference source not found, para. 146.51 General Comment No. 34, note Error: Reference source not found, para. 14.52 Principle III.53Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, note Error:

Reference source not found, para. 34.

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attention. In a 2012 case, Centro Europa 7 S.R.L. and Di Stefano v.Italy, a Grand Chamber of the European Court of Human Rights set outin some detail the key principles governing this idea:

129. The Court considers it appropriate at the outset to recapitulatethe general principles established in its case-law concerning pluralismin the audiovisual media. As it has often noted, there can be nodemocracy without pluralism. Democracy thrives on freedom ofexpression. It is of the essence of democracy to allow diverse politicalprogrammes to be proposed and debated, even those that call intoquestion the way a State is currently organised, provided that they donot harm democracy itself.

130. In this connection, the Court observes that to ensure truepluralism in the audiovisual sector in a democratic society, it is notsufficient to provide for the existence of several channels or thetheoretical possibility for potential operators to access the audiovisualmarket. It is necessary in addition to allow effective access to themarket so as to guarantee diversity of overall programme content,

reflecting as far as possible the variety of opinions encountered in thesociety at which the programmes are aimed.

134. The Court observes that in such a sensitive sector as theaudiovisual media, in addition to its negative duty of non-interferencethe State has a positive obligation to put in place an appropriatelegislative and administrative framework to guarantee effectivepluralism (see paragraph 130 above). This is especially desirablewhen, as in the present case, the national audiovisual system ischaracterised by a duopoly.

With this in mind, it should be noted that in Recommendation

CM/Rec(2007)2 on media pluralism and diversity of media content(see paragraph 72 above) the Committee of Ministers reaffirmed thatin order to protect and actively promote the pluralistic expressions ofideas and opinions as well as cultural diversity, member states shouldadapt the existing regulatory frameworks, particularly with regard tomedia ownership, and adopt any regulatory and financial measurescalled for in order to guarantee media transparency and structuralpluralism as well as diversity of the content distributed. [referencesomitted]54

The Court referred to the Council of Europes Recommendation2007(2) on Media Pluralism and Diversity of Media Content,55 which is

entirely devoted to the question of media diversity and measures topromote it.

54 7 June 2012, Application no. 38433/09. See also See, for example,Informationsverein Lentia and Others

v. Austria, 24 November 1993, Application nos. 13914/88, 15041/89, 15717/89, 15779/89 and 17207/90,

para. 38.55 Recommendation No. R (2007)2, adopted by the Committee of Ministers on 31 January 2007. This

updates Recommendation No. R(1999)1 in Measures to Promote Media Pluralism, adopted by the

Committee of Ministers on 19 January 1999.

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The 2007 Joint Declaration on Diversity in Broadcasting of the fourspecial international mandates on freedom of expression the UnitedNations Special Rapporteur on Freedom of Opinion and Expression, theOrganization for Security and Cooperation in Europe (OSCE)Representative on Freedom of the Media, the Organization of American

States (OAS) Special Rapporteur on Freedom of Expression and theAfrican Commission on Human and Peoples Rights (ACHPR) SpecialRapporteur on Freedom of Expression and Access to Information focused entirely on media diversity, stressing its importance as anaspect of freedom of expression and as an underpinning ofdemocracy.56

The Joint Declaration identified three distinct aspects of mediapluralism or diversity: content, outlet and source.57 Diversity ofcontent, in the sense of the provision of a wide range of content thatserves the needs and interests of different members of society, is the

most obvious and ultimately the most important form of diversity.Diversity of content, one aspect of which is giving voice to all groups insociety, depends, among other things, on the existence of a plurality oftypes of media, or outlet diversity. Specifically, democracy demandsthat the State create an environment in which different types ofbroadcasters including public service, commercial and communitybroadcasters which reflect different points of view and providedifferent types of programming, can flourish. The absence of sourcediversity, reflected in the growing phenomenon of concentration ofmedia ownership, can impact in important ways on media content, aswell as independence and quality.

A number of authoritative statements support the idea that the right tofreedom of expression places States under an obligation to promote allthree types of diversity, namely of source, of outlet and of content. Ithas, however, always been recognised that there is a need todistinguish between how the print and broadcast sectors are regulated.In many States, only diversity of source is regulated in the print mediasector, which does not suffer from the same externalities and rigiditiesas the broadcasting sector. At the same time, some States do providefor subsidies for the print media as a means of promoting diversity ofcontent in that sector.

The need to prevent undue concentration of media ownership, ordiversity of source, is well established under international law. Asthe UN Human Rights Committee has stated:

56 Adopted 12 December 2007. Available at: http://www.osce.org/fom/66176.57 See also: Thomas Gibbons, Concentrations of Ownership and Control in a Converging Media Industry,

in Chris Marsden & Stefaan Verhulst, eds., Convergence in European Digital TV Regulation (London,

Blackstone Press Ltd., 1999), pp. 155-173, at 157.

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The Committee reiterates its observation in general comment No. 10that because of the development of modern mass media, effectivemeasures are necessary to prevent such control of the media aswould interfere with the right of everyone to freedom of expression.

The State should not have monopoly control over the media and

should promote plurality of the media. Consequently, States partiesshould take appropriate action, consistent with the Covenant, toprevent undue media dominance or concentration by privatelycontrolled media groups in monopolistic situations that may beharmful to a diversity of sources and views. [references omitted] 58

Principle 12 of the Inter-American Declaration specifically calls formeasures to limit [m]onopolies or oligopolies in the ownership andcontrol of the communication media, on the basis that theyundermine the plurality and diversity which ensure the full exercise ofpeoples right to information. The Inter-American Court of HumanRights has similarly called for the barring of all monopolies [of

ownership of the means of communication], in whatever form, againin service of pluralism.59 The African Declaration similarly calls foreffective measures to prevent undue concentration of mediaownership.60 A 2007 Declaration of the Council of Europe highlights theproblem of media concentration and makes a number ofrecommendations on how to address it, including through rules ontransparency of ownership and prohibiting media concentrations abovecertain levels.61 The European Court has identified one of the keyproblems with undue concentration of media ownership:

A situation whereby a powerful economic or political group in society

is permitted to obtain a position of dominance over the audiovisualmedia and thereby exercise pressure on broadcasters and eventuallycurtail their editorial freedom undermines the fundamental role offreedom of expression in a democratic society as enshrined in Article10 of the Convention, in particular where it serves to impartinformation and ideas of general interest, which the public ismoreover entitled to receive. This is true also where the position ofdominance is held by a State or public broadcaster. Thus, the Courthas held that, because of its restrictive nature, a licensing regimewhich allows the public broadcaster a monopoly over the availablefrequencies cannot be justified unless it can be demonstrated thatthere is a pressing need for it.62

58 General Comment No. 34, note Error: Reference source not found, para. 40.59Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, note Error:Reference source not found, para. 34.60 Principle XIV(3). The African Declaration also rules out public broadcasting monopolies. See Principle

V(1).61 Declaration of the Committee of Ministers of the Council of Europe on protecting the role of the media in

democracy in the context of media concentration, adopted 31 January 2007. See also the 2007 Council of

Europe Recommendation on media pluralism, note Error: Reference source not found, clause I(2).62Centro Europa 7 S.R.L. and Di Stefano v. Italy, note Error: Reference source not found, para. 133.

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Different types of broadcasters commercial, public service andcommunity should be able to operate on, and have equitable accessto, all available distribution platforms. To achieve this, it calls for thereservation of sufficient space on different broadcasting platforms,including in the digital environment, for all three types of broadcasters,

and for special measures, in particular, to protect public service andcommunity broadcasters. The same ideas are reflected in their 2013Declaration, which is about the transition to digital terrestrialbroadcasting.67

In practice, democracies around the world are increasingly recognisingthe need for outlet pluralism. The important and different roles playedby commercial and public service broadcasters has long beenunderstood and accepted. Community broadcasting has gainedwidespread recognition in recent years and frequencies areincreasingly being set aside for this form of broadcasting, while

licensing rules are being amended to accommodate it.

The general need to promote content diversity has also receivedwidespread recognition. A key idea here is that licensing processesshould be based on a beauty contest, of which a key criterion shouldbe diversity, rather than a first-come, first-served or highest bidderapproach. The African Declaration specifically calls for licensingprocesses to be used to promote diversity,68 and the 2007 Council ofEurope Recommendation on media diversity similarly calls for thelicensing process to be used to this end.69 In practice, mostdemocracies include contributing to content diversity as one of the

criteria for deciding between competing licence applications.

Both the 2007 Council of Europe Recommendation and the AfricanDeclaration also include more specific calls for the promotion ofcontent diversity. The Council of Europe Recommendation, forexample, calls on States to define and implement an active policy inthis area and to encourage the media to provide diverse content whilerespecting editorial independence, and gives as a possible examplerequiring broadcasters to produce a certain volume of originalprogrammes.70 The African Declaration calls for the promotion ofAfrican voices, including through the media, and in local languages.71

The European Convention on Transfrontier Television requires allStates Parties to ensure that at least 50 percent of the programming

67 Available at: http://www.law-democracy.org/live/international-mandates-diversity-key-in-digital-

transition/.68 Principle V.69 Clause II(3).70 Clause II.71 Principle III.

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carried by broadcasters within their jurisdictions is of European origin.72

In many States, broadcast regulators impose specific diversityobligations on licensees, for example through the imposition ofminimum requirements relating to news, education, local content and

access by independent producers to the airwaves. Most democraciesalso impose an obligation on all broadcasters to be balanced andimpartial in their news and coverage of current affairs.

Practice in the RegionThe specific promotion of diversity has not been a priority in the Arabworld. In most countries, regulation of both the print media andbroadcasting has been largely controlled by the government. Insteadof the promotion of diversity, the main objective of the licensing ofbroadcasters or print media outlets has been to ensure loyalty to thegoverning regime and an understanding that the owner would not

engage in criticism of government or officials.

In terms of source diversity, few if any States in the region havespecific rules on concentration of media ownership. Indeed, in someStates, such as Egypt, there are not even general rules on ownershipconcentration. On the other hand, Egypt does have in place a rule thatformally prohibits any one person from owning more than 10 percentof any newspaper. Although this was not devised to promote diversity,it could potentially have that effect, although the rule does not appearto be applied rigorously in practice.

In several countries in the region, the historical trend in terms ofnewspapers was for party political newspapers to develop first,followed only later, if at all, by more independent newspapers. In manycountries, including Algeria, Palestine and Jordan, these party politicalnewspapers, or newspapers close to the governing party, continue toplay a very significant role in the newspaper sector, to the obviousdetriment of diversity.

Despite the lack of regulation, ownership tends to be quite diverse inpractice in most countries in the Arab world, due to the way the markethappens to have developed. This is not cause for complacency.

Instead, it should be a call for action. Experience in other countries hasshown that the best time to put in place measures regarding mediaownership is before undue concentrations emerge, because after thishappens, it can be very difficult indeed to deconstruct concentratedmedia ownership empires.

72 Adopted 5 May 1989, E.T.S. 132, entered into force 1 May 1993, as amended by the Protocol, adopted 1

October 1998, E.T.S. 171, entered into force 1 March 2002.

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Instead of promoting outlet diversity, most countries in the region havein place regulatory regimes that specifically discourage it. Communitybroadcasting is not developed anywhere in the region and we are notaware of any regulatory systems there that specifically provide for, letalone encourage, it. Even commercial broadcasting is underdeveloped

and undermined by regulation in most countries in the region. In some,like Iran and Bahrain, private broadcasting is specifically prohibited. Inmany others, including Morocco, Jordan and Algeria, privatebroadcasting has only been authorised very recently and remains in itsinfancy. In Jordan, television remains a State monopoly while in Egyptradio is a virtual State monopoly. In several countries, including Egypt,Algeria and Morocco, only satellite television stations (and not free-to-air terrestrial television) have been allowed to operate, although theyrepresent a robust market, at least in Egypt.

Rules aimed at promoting content diversity are also largely unknown in

the region. In most countries, the news market is heavily dominated bynational news, to the detriment of local news, with no regulatorycounterweight to, and sometimes even regulatory support for, thisunfortunate tendency. At the same time, there has been somemovement by some media to try and include more local news amongtheir output.

Instead of promoting diversity, in some countries the mandates ofprivate broadcasters are constrained in ways that undermine diversity.In Morocco, for example, FM radio stations are not allowed tobroadcast news. In Jordan, there are separate licences for broadcasting

news, which cost substantially more than non-news licences.

3. Regulation of Journalists

International and Comparative Standards

Licensing of JournalistsIt is clear under international law that it is not permissible to imposelimitations on who may practise as a journalist or to require journaliststo belong to a particular association or to be licensed or registered.

The UN Human Rights Committee has made it clear that this applies toall types of journalists:

Journalism is a function shared by a wide range of actors, including professional full-time reporters and analysts, as well as bloggers and others who engage in forms of self-

publication in print, on the internet or elsewhere, and general State systems of

registration or licensing of journalists are incompatible with paragraph 3.73

73 General Comment No. 34, note Error: Reference source not found, para. 44.

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In their 2003 Joint Declaration, the (then) three special internationalmandates for protecting freedom of expression supported this, stating:

Individual journalists should not be required to be licensed or toregister.

There should be no legal restrictions on who may practisejournalism.74

Similarly, the Inter-American Declaration rules out specific types ofentry requirements for the profession of journalism:

Every person has the right to communicate his/her views by anymeans and in any form. Compulsory membership or the requirementof a university degree for the practice of journalism constituteunlawful restrictions of freedom of expression.75

This issue was explored in detail in a 1985 opinion of the Inter-American Court of Human Rights, based on a reference by Costa Rica,which was seeking the Courts views of the legitimacy of a schemewhereby journalists were required to belong to a specific associationand where conditions for example as to age and education wereplaced on them.76 Costa Rica argued that the requirement thatjournalists belong to the colegio (association) was legitimate for threereasons. First, it was the normal way to regulate professions. Second,it sought to promote higher professional and ethical standards, whichwould benefit society at large and ensure the right of the public toreceive full and truthful information. Third, the licensing scheme wouldguarantee the independence of journalists in relation to theiremployers. Costa Rica claimed that all three grounds could be justifiedas necessary to protect public order, understood broadly as theconditions that assure the normal and harmonious functioning ofinstitutions based on a coherent system of values and principles.77

The Court remarked that the organisation of professions throughassociations could facilitate the development of a coherent system ofvalues and principles, and so contribute to public order. However, italso observed that, at least in relation to the profession of journalism,public order would benefit much more by protecting the free flow ofinformation and ideas than by controlling access to the profession:

Freedom of expression constitutes the primary and basic element of

74 Joint Declaration of 18 December 2003. Available at: http://www.osce.org/fom/66176.75 Principle 6.76Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory

Opinion OC-5/85 of 13 November 1985, Series A. No. 5. Available in English at:

http://www.corteidh.or.cr/serieapdf_ing/seriea_05_ing.pdf.77 Para. 64.

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the public order of a democratic society, which is not conceivablewithout free debate and the possibility that dissenting voices be fullyheard It is also in the interest of the democratic public orderinherent in the American Convention that the right of each individualto express himself freely and that of society as a whole to receiveinformation be scrupulously respected.78

Examining the first argument, the Court distinguished betweenjournalism and other professions, noting:

The profession of journalism the thing journalists do involves,precisely, the seeking, receiving and imparting of information. Thepractice of journalism consequently requires a person to engage inactivities that define or embrace the freedom of expression which theConvention guarantees. This is not true of the practice of law ormedicine, for example. Unlike journalism, the practice of law andmedicine -that is to say, the things that lawyers or physicians do- isnot an activity specifically guaranteed by the Convention. The Courtconcludes, therefore, that reasons of public order that may be valid to

justify compulsory licensing of other professions cannot be invoked inthe case of journalism because they would have the effect ofpermanently depriving those who are not members of the right tomake full use of [the right to freedom of expression].79

The Court also dismissed the argument that licensing schemes arenecessary to ensure the publics right to be informed, by screening outpoor journalists and promoting professional standards, among otherthings because of the potential for abuse of such a system:

[G]eneral welfare requires the greatest possible amount ofinformation, and it is the full exercise of the right of expression thatbenefits this general welfare A system that controls the right ofexpression in the name of a supposed guarantee of the correctnessand truthfulness of the information that society receives can be thesource of great abuse and, ultimately, violates the right to informationthat this same society has.80

The Court then turned to the argument that a licensing scheme wouldbolster the association and thereby strengthen the profession and helpprotect journalists defend their rights as against their employers. TheCourt found that this goal could be accomplished through less intrusivemeans and hence failed to meet the necessity part of the test for

restrictions on freedom of expression:[I]t is not enough that the restriction be useful to achieve a goal, thatis, that it can be achieved through it. Rather, it must be necessary,which means that it must be shown that it cannot reasonably beachieved through a means less restrictive of a right protected by the

78 Para. 69.79 Paras. 72-76.80 Para. 77.

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Convention. In this sense, the compulsory licensing of journalists doesnot comply with the requirements of Article 13(2) of the Convention[regarding restrictions on freedom of expression] because theestablishment of a law that protects the freedom and independence ofanyone who practices journalism is perfectly conceivable without thenecessity of restricting that practice only to a limited group of the

community.

81

AccreditationNotwithstanding the prohibition on licensing journalists, it is widelyaccepted that it may be appropriate to provide accreditation tojournalists where this is necessary to enable them to gain access tolimited space venues, in particular parliament but sometimes also thecourts. As the UN Human Rights Committee has stated:

Limited accreditation schemes are permissible only where necessaryto provide journalists with privileged access to certain places and/orevents. Such schemes should be applied in a manner that is non-

discriminatory and compatible with article 19 and other provisions ofthe Covenant, based on objective criteria and taking into account that

journalism is a function shared by a wide range of actors.82

Similarly, in their 2003 Joint Declaration, the special internationalmandates stated:

Accreditation schemes for journalists are appropriate only wherenecessary to provide them with privileged access to certain placesand/or events; such schemes should be overseen by an independentbody and accreditation decisions should be taken pursuant to a fairand transparent process, based on clear and non discriminatory

criteria published in advance.

Accreditation should never be subject to withdrawal based only on thecontent of an individual journalists work.

The OSCE has stressed that journalists should not lose theiraccreditation based on the contents of their writings:

Recalling that the legitimate pursuit of journalists professional activitywill neither render them liable to expulsion nor otherwise penalizethem, [member States] will refrain from taking restrictive measuressuch as withdrawing a journalists accreditation or expelling himbecause of the content of the reporting of the journalist or of hisinformation media.83

Different countries take different approaches to the operation ofaccreditation schemes. In holding that the system in place in Canada,

81 Para. 79.82 General Comment No. 34, note Error: Reference source not found, para. 44.83 Conference for Security and Co-operation in Europe, Follow-up Meeting 1986-1989, Vienna, 4

November 1986 to 19 January 1989, Concluding Document, para. 39.

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which was run by a private association of journalists, did not meet thestandards required by Article 19 of the ICCPR, the Human RightsCommittee stated:

[I]ts operation and application must be shown as necessary andproportionate to the goal in question and not arbitrary The relevantcriteria for the accreditation scheme should be specific, fair andreasonable, and their application should be transparent. 84

An interesting system is in place in the United Kingdom where theParliament runs its own special accreditation scheme. In parallel to thisis the system of issuing press cards, which is overseen by the UK PressCard Authority,85 a self-regulatory body which issues press cards toprofessional newsgatherers. The scheme represents a form ofcooperation between the Metropolitan Police (the London police force)and professional bodies representing media workers. It was launchedin 1992, with the aims of ending what had become a proliferation of

different press cards being issued by different groups, and agreementon a universally recognised card.

The Authority is made up of 16 gatekeepers, all of which are nationaltrade unions and professional associations representing journalists andother media personnel (employed and freelance). The gatekeepersissue cards to their members and are responsible for ensuring that theconditions are adhered to. There is a set of Press Card Scheme Ruleswhich set standards for the scheme, as well as the cards themselvesand the criteria for new gatekeepers. These Rules provide for agoverning board, comprised of representatives of each gatekeeper.

They also provide for a Gatekeepers Committee, which oversees theoperation of the scheme.

The definition of eligibility for a card is very broad, as follows:

An Eligible Newsgatherer is anyone working in the UK whoseemployment or self-employment is wholly or significantly concernedwith the gathering, transport or processing of information or imagesfor publication in broadcast electronic or written media including TV,radio, internet-based services, newspapers and periodicals; and whoneeds in the course of those duties to identify themselves in public orother to official services.86

The press card is formally recognised by all police forces in the UK, andde facto by other public bodies.

Protection of Sources

84Gauthier v. Canada, 7 April 1999, Communication No. 633/1995, para. 13.6.85 See http://www.presscard.uk.com/.86 Press Card Scheme Rules, Rule 1.9.

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International law provides strong protection for the right of journalistsand others who provide the public with information of public interest torefuse to divulge their confidential sources of information. This isrecognised as being an important component of the protection of thefree flow of information and ideas in society since, if journalists are not

able to offer real protection for confidentiality for those who seek it,those individuals are unlikely to approach journalists in the first placeand the information they relay would no longer be publicly available.The real interest being protected here is, therefore, the right of thepublic to seek and receive information and ideas.

The basic rationale for protection of sources was set out very clearly ina case before the European Court of Human Rights, Goodwin v. UnitedKingdom, as follows:

Protection of journalistic sources is one of the basic conditions forpress freedom.... Without such protection, sources may be deterredfrom assisting the press in informing the public on matters of publicinterest. As a result the vital public-watchdog role of the press may beundermined and the ability of the press to provide accurate andreliable information may be adversely affected. Having regard to theimportance of the protection of journalistic sources for press freedomin a democratic society and the potentially chilling effect an order ofsource disclosure has on the exercise of that freedom, such a measurecannot be compatible with Article 10 of the Convention unless it is

justified by an overriding requirement in the public interest.87

The right has also been recognised by other authoritative internationalsources, including the UN Human Rights Committee, which has stated:

States parties should recognize and respect that element of the rightof freedom of expression that embraces the limited journalisticprivilege not to disclose information sources. [references omitted]88

Protection for confidential sources is in practice strong in democraciesaround the world.

Practice in the RegionThere is a very strong tradition and belief in many countries in theArab world that, due to its status as a profession, journalists should be

required to belong to a single professional association or union, andthere are often also conditions on who may become a member of theseassociations, beyond a simple requirement to be working as ajournalist (such as minimum age, or educational or experiencerequirements). It is often believed that this is necessary for many of

87 27 March 1996, Application no. 17488/90, para. 39.88 General Comment No. 34, note Error: Reference source not found, para. 45. See also Principle 8 of the

Inter-American Declaration and Principle XV of the African Declaration.

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the reasons that were addressed, and rejected, in the case before theInter-American Court of Human Rights.

At the same time, there are often anomalies in the way these systemsare applied. For example, in Egypt, no one who is not a member of the

Journalist Syndicate, which is established by law, is legally allowed topractise journalism and newspapers are formally barred from hiringjournalists who are not members of the Syndicate. However, only6,300 of the estimated total number of 15,000 journalists working forthe print media are in fact Syndicate members, with the rest beingformally in breach of the law.89 In addition to the formal right topractise as a journalist, members receive very important otherbenefits, including a significant monthly stipend. There is currently avibrant debate in Egypt about how to address this situation. A similarsituation pertains in Jordan. Even in Lebanon, journalists are formallyrequired to be included on the press roll of journalists developed by the

Roll Committee of the Lebanese Press Association, although as inEgypt this is widely flouted in practice.

A less repressive but still problematical approach is taken in Iraq.Membership in the Journalists Syndicate is not formally required bylaw. However, the Journalist Law provides very significant benefits tomembers of the Syndicate, including protections against arrest andspecial pr

Documents

Handbook on International Standards and Media Law in the Arab World